Mediation Gaining in Employment Disputes as Arbitration Declines (6/18/08)
Keith Seat

Employers are increasingly turning from arbitration in employment disputes, due to the increased costs of discovery, potential for rogue outcomes that cannot be appealed, and uncertainty over whether mandatory arbitration provisions will be upheld. With overtime litigation continuing to increase around the country, many defense lawyers are encouraging clients to turn to mediation instead of arbitration. Wage-and-hour litigation increased over 200% between 2001 and 2007 and overtime lawsuits have displaced employment discrimination as the most common form of employment litigation.

The National Law Journal (June 9, 2008) (Subscription Required)

EEOC Continues to Focus on Mediation of Discrimination Charges (4/07/08)
Keith Seat

The Equal Employment Opportunity Commission reported a 9 percent increase in job bias charges last year, for a total of nearly 83,000 private sector filings in 2007. In addition to non-monetary relief, the EEOC recovered over $290 million for charging parties through administrative enforcement and mediation, compared with $55 million through EEOC litigation. Employers continue to enter into Universal Agreements to Mediate with the EEOC, with the total rising by 15 percent during 2007, to over 1,200. The EEOC’s National Mediation Program has a user satisfaction rate of 96 percent, meaning that nearly everyone using the program would do so again.

Federal Information & News Dispatch, Inc. (March 5, 2008) (Subscription Required)

Workplace violence blog committed to making employees safer (2/11/08)
Diane J. Levin

PART27.com, a web site dedicated to providing resources that help organizations, companies, and agencies create safer workplaces, also publishes Workplace Violence, a blog that delivers news and links to resources for employers and others seeking ways to address and prevent violence at work.

Among the stories covered recently are:

• “Bullying bad for business“
• “Bullied at work: practice costs productivity, health” and
• New European report highlights emerging psychosocial risks in the workplace

The Conflict Skilled Organization (11/26/07)
Lynne Eisaguirre
What is the common denominator in most organizational conflict? The leaders have not spent enough time and energy thinking about culture —that invisible glue that holds organizations together and determines organizational effectiveness. Especially lacking is a failure to think about how they want the culture to address and resolve the inevitable conflicts each organization faces on a daily basis. A lack of agreement about a common culture frequently shows up as constant and intractable conflicts.

Outside Mediators Best in Workplace Disputes (10/31/07)
Keith Seat

Using a mediator who is independent, rather than on staff, and not identified with either side is a key qualification in resolving difficult workplace disputes. An outside mediator may more effectively address problems on both rational and emotional levels, by assisting the parties in viewing issues more clearly and helping them address strong feelings in a safe environment, as well as providing other benefits of mediation.

Gulfnews.com (UAE) (October 2, 2007)

Bursting the bubble: cultivating dissent in the workplace (10/15/07)
Diane J. Levin
According to a recent BusinessWeek poll, 90% of executives and middle managers believe that they perform in the top 10%. (This effect, known as positive illusion bias, is not confined to managers alone: it can be found among drivers confident that their reflexes are superior to those of others on the road, trial attorneys certain that they have the stronger case, and negotiators with an overinflated sense of their own prowess at the table.)

Given how widespread this phenomenon is, and how fallible then our judgment can be about the utility of our ideas and the strength of our abilities, many of us are undoubtedly in need of a little healthy perspective-taking when it comes to the decisions we make.

Just in time comes the latest edition of the Harvard Business School's Working Knowledge newsletter with an article on the importance of "Encouraging Dissent in Decision-Making".

Dissent asks the hard questions, anticipates problems, and prevents mistakes--mistakes which can otherwise prove costly:

Consider the costs to organizations, large and small, when dissent does not or cannot surface: Abjuring rigorous debate about its merits, a youthful president John F. Kennedy essentially rubber-stamped a 1961 plan to invade Cuba at the Bay of Pigs, resulting in one of the biggest U.S. foreign policy fiascoes in decades. During a 1996 commercial expedition to the summit of Mt. Everest, several climbers, including two of the world's most experienced professionals, died in part because junior team members didn't speak up when their expert leaders ignored their own core operating principles surrounding safety. In 2003, NASA engineers were reluctant to challenge long-held beliefs that foam strikes incurred during the launch of the space shuttle Columbia posed no risk to its fuselage.

Consider that the next time someone disagrees with you.

(Thanks to Thoughts from a Management Lawyer for the poll results.)

(Photo credit: Javier Taboada.)

Are You Confrontable? (10/15/07)
Lynne Eisaguirre
When I’m asked to coach executives who’ve been accused of abuse, harassment, discrimination, poor conflict resolution skills or general “poor people management” skills, they frequently lament: “But I didn’t know that he or she objected to my behavior. Why didn’t they tell me?” To this popular excuse I always respond: “What have you done to make it safe for them to come to you and complain about your behavior?”

Resolved to Get Organized? . . . What about Organizing to Resolve? (8/27/07)
Dawn Martin
The average person spends roughly 150 hours per year trying to find documents, electronic files, and other information... That’s equivalent to almost a month of work. Some studies put the number even higher—at 10% of work time. Think of the lost productivity, the aggravation, the resulting in-house discord and, just as importantly, the hours that could have been spent simply enjoying life. Now consider how many workplace conflicts result from lack of communication or miscommunication, and how often these lapses occur because the parties were “just too busy” to communicate effectively. When we talk about enhancing people’s capacity to prevent and resolve conflict, we need to include organizational skills in the conversation.

Ten Tips on Maximizing Success in ERISA Mediations (8/20/07)
Jeffrey Krivis, Mariam Zadeh
Employee Retirement Income Security Act (ERISA) disputes present unique and specific challenges in large part due to the statutory limitations imposed on scope of discovery, standard of review and plaintiff’s recovery. “It’s just not fair!” is the response most often heard from plaintiffs after they are reminded at the mediation that the upside of their recovery is limited to the extent of contractual damages available under their disability policy, that a “win” in court means receiving back benefits and being reinstated, and that their “day in court” will amount to no more than a hearing over the administrative record at which they cannot testify. The tips below maximize the likelihood of success by laying the groundwork and staging the negotiation in a manner that encourages closure and enables the plaintiff to understand and appreciate the parameters within which a settlement may be reached.

Improving the Workplace: Don't De-Motivate Your Colleagues and Employees (8/13/07)
Victoria Pynchon

(left:  the country's favorite bad boss)

Diane Levin introduced her readers to a great video over at the ej4 Learning Center some time ago but I just got around to watching it today. 

In the course of this short video, you'll see every bad boss you've ever had as well as (grit your teeth but bear it!) every bad boss behavior you've ever been guilty of.

A must-see:  Impedership Versus Leadership

What does this have to do with negotiation?  First off, you'll find yourself negotiating salary increases a lot less often if you have a happy workforce.    

Thanks Diane!!

Can We Call a Truce? Ten Tips for Negotiating Workplace Conflicts (8/06/07)
Jeffrey Krivis
Whether two employees are fighting or a disgruntled client is on the verge of leaving, you—yes, you—can step in and help solve the problem. Here are some tricks of the trade.

Concept of Undue Hardship and Reasonable Accommodation in the Employment Context (5/07/07)
William D. Goren
What is a reasonable accomodation in the employment context? Under the ADA, reasonable accommodation is defined in the negative. More specifically, a reasonable accommodation is anything that does not constitute an undue hardship. Thus, it becomes imperative to know what an undue hardship is.

A Team Approach to Fairness in Conflict Management Systems Design (4/02/07)
Blaine Donais
In the book Workplace That Work, we have explored options for conflict management systems and introduced the Testing Instrument for Fairness Systems (TIFFS), thus exploring the first part of the Donais Fairness Theory: that fairness can be measured in workplace conflict management systems. But how do we prove the second part of the Fairness Theory - that workplaces can achieve fairness excellence? How do we start the workplace renewal process?

How Fair Is Your Conflict Management System? (3/05/07)
Blaine Donais
Many practitioners and commentators have provided advice on developing effective conflict management systems in the workplace. But are these conflict management systems fair to all workplace participants? And is it even possible to measure fairness in conflict management systems? This article proposes that workplace fairness is both measurable and achievable in conflict management systems. As discussed in the book Workplaces That Work, this is the essence of the Donais Fairness Theory.

Recent Study Shows Bad Workplace Apples Do Indeed Spoil the Barrel (2/27/07)
Diane J. Levin
According to the results of a study reported in the journal Research in Organizational Behavior, bad apples really do spoil it for their co-workers. This will come as no surprise to anyone who has ever shared a workspace with a negative personality.

The study, conducted by Will Felps, a Ph.D. candidate in management and organizational behavior, Professor Terence R. Mitchell, and graduate student Eliza Byington, all from the University of Washington Business School, examines the ways in which the negative behavior of proverbial "bad apples" can wreak havoc on a workplace. Unsurprisingly, bad apples undermine creativity and problem-solving, stymie learning, escalate conflict, distract co-workers from their tasks, destroy trust, and produce a host of other ill effects that no organization can afford to ignore.

The study was inspired by the experience of Felps's wife with a bad apple in her own workplace:

Felps' wife was unhappy at work and characterized the environment as cold and unfriendly. Then, she said, a funny thing happened. One of her co-workers who was particularly caustic and was always making fun of other people at the office came down with an illness that caused him to be away for several days.

"And when he was gone, my wife said that the atmosphere of the office changed dramatically," Felps said. "People started helping each other, playing classical music on their radios, and going out for drinks after work. But when he returned to the office, things returned to the unpleasant way they were.

She hadn't noticed this employee as being a very important person in the office before he came down with this illness but, upon observing the social atmosphere when he was gone, she came to believe that he had a profound and negative impact. He truly was the "bad apple" that spoiled the barrel."

The study, "How, when, and why bad apples spoil the barrel: Negative group members and dysfunctional groups", is available (in PDF) at Will Felps's web page.

Redefining Conflict Management Systems Options (2/05/07)
Blaine Donais
This article explores system options for managing conflict in the non-union workplace. This is intended to build upon the work done by others in this area by seeking to categorize the conflict management options as interest-based, rights-based, power-based or communication-based.

Perspective Taking (2/05/07)
Craig Runde, Tim Flanagan
We are presenting a third excerpt from the new book, Becoming a Conflict Competent Leader, by Craig Runde and Tim Flanagan (Jossey-Bass, 2006). This excerpt focuses on perspective taking, trying to understand how the other person sees and feels about an issue. It includes a fun and highly illustrative example from Tim's life.

Creation of an Ombuds Office Can Prevent Retaliation Claims (1/09/07)
Michael Eisner
In its decision in Burlington Northern & Santa Fe Railroad Co. v White, the Supreme Court held that the standard of proof required to establish a retaliation claim under Title VII of the Civil Rights Act of 1964 is less than the standard of proof required in discrimination claims under the same statute. This decision makes it easier for employees to raise retaliation claims and to survive summary judgment motions. In light of this decision it is more important than ever that organizations create informal as well as formal grievance procedures to properly manage conflicts that may give rise to retaliation claims. The creation of an Ombuds Office can help organizations manage these conflicts effectively by helping to resolve them early and at the lowest possible level.

Who are Your Workplace Actors? (1/03/07)
Blaine Donais
The effective management of workplace conflict requires a thorough understanding of the roles that individuals play in generating and resolving this conflict.

Providing Learning Opportunities (12/23/06)
Craig Runde, Tim Flanagan
Conflict competent leaders can not be the exclusive coach for every learner. Certainly they look for opportunities to actively teach and coach, but it’s just as critical that they offer opportunities for development. This can be accomplished in several ways.

What Are the Sources of Workplace Conflict? (11/11/06)
Blaine Donais
Conflict can exist without disputes, but disputes do not exist without conflict. Conflict, however, might not be so easily noticed. Much conflict exists in every workplace without turning into disputes. The first step in uncovering workplace conflict is to consider the typical sources of conflict. There are a variety of sources of workplace conflict including interpersonal, organizational, change related, and external factors.

Becoming a Conflict Competent Leader (11/06/06)
Craig Runde, Tim Flanagan
Becoming a Conflict Competent Leader (Jossey-Bass) is a new book from Craig Runde and Tim Flanagan that serves as a call to action to leaders to become champions of conflict competence in their organizations. Runde and Flanagan work at the Leadership Development Institute at Eckerd College, a network associate of the Center for Creative Leadership. Based on their experience of working with leaders from corporate, government, and non-profit organizations, they became convinced that organizations would not get better at dealing with conflict unless leaders took a more active role by improving their personal conflict skills and encouraging others in their organization to do so as well. This excerpt is from the book's preface.

Workplace Disability Conflict Management (10/03/06)
Judith Cohen
The publication of “Workplace Disability Conflict Management Best Practices” below brings us full circle in a sense. Our focus has shifted from ADA mediation as a specialized field of practice to its current integration as “ADA conflict management practices” into standard operating procedure at many organizations.

Improve Your Ability to Handle Workplace Conflict: An Interview with Judy Ringer (9/18/06)
Judy Ringer
Recently a local newspaper interviewed Judy Ringer on the subjects of workplace conflict, difficult people, and how to manage them more effectively.

Flash Flood Warning: After the Early Raine Decision this Year, Employers’ Are Creating a Weather System That Forecasts a Hurricane (8/28/06)
Elizabeth Moreno
Recently, I have been mediating several claims involving the Raine v. City of Burbank (2006) decision. I thought you would be interested in how to deal with the problem . . .